Scottish Court of Session Decisions

vol. xxii.] COURT OF SESSION, &c. 505

No. 103.

Mar. 16, 1895.

Elder's Trustees v. Elder.

John Stewart Smith and Others (Thomas Elder's Trustees), Pursuers

and Real Raisers.

Mrs Elizabeth Reid and Another, Claimants (Rclaimers).-Salvesen-

M'Clure.

Mrs Margaret Elder (Thomas Elder's Tutor), Claimant (Respondent).

-Lord-Adv, Balfour-W. Campbell.

John Forrester Neville and Another (Thomas Elder's Trustees),

Claimants.-Asher- Craigie.

Henry Aitken (Margaret E. Elder's Tutor ad litem), Claimant. -Hunter.

Succession-Conditio si testator sine liberis decesserit-Trust-Settlement- Revocation of prior leill-Presumption.-While the law presumes that a will which makes no provision for children nascituri is revoked on the subsequent birth of a child, there is no presumption that a prior will which has been expressly revoked by the later will is restored, although it contains provisions for children nascituri.

(Per Lord M'Laren) " I should be disposed to hold that whenever a last will is cut down by the operation of the rule or presumption that we are now considering, all previous testamentary settlements must fall along with it except such as are obligatory and matter of contract."

Res judicata-Multiplepoinding.-In a multiplepoinding raised by testamentary trustees for the distribution of an estate, consisting of heritage and move-ables, two of the testator's daughters claimed equal shares of the mixed estate under a settlement dated in 1886.

A claim by the testator's son to the whole heritage was sustained on the ground that the deed of 1886 had been impliedly revoked on the birth of the son.

Subsequently the two daughters claimed shares of the heritage under a settlement executed by their father in 1858 on the ground that the implied revocation of the deed of 1886 left the deed of 1858 unrevoked.

Held that in a question with these claimants the son's right to the whole heritage was res judicata.

506 CASES DECIDED IN THE [fourth series.

No. 103.

Mar. 16, 1895.

Elder's Trustees v. Elder.

1st Division.

Lord Low.

(Supra, March 16,1894, 21 R. 704.)

Thomas Elder, wine and spirit-merchant in Glasgow, died on 24th October 1891, leaving a trust-disposition and settlement, dated 26th March 1886. By this settlement he revoked all previous settlements, and conveyed his whole estate, heritable and moveable, to trustees, and directed them, after making payment of certain small legacies, to hold the residue for behoof of his daughters, Elizabeth, Martha, and Margaret in liferent, and their issue in fee. The settlement contained no provision for children of the testator nascituri.

The testator had been twice married, and had had in all four children. Of the daughters mentioned in the settlement, two, Elizabeth (Mrs Reid) and Martha (Mrs Lockhart), were born of the first marriage. Margaret, the remaining daughter, was born of the second marriage (which took place in 1879), on 11th December 1885. After the date of the settlement a son, Thomas, was born to the testator on 18th December 1890 about ten months before his father's death. All the testator's children and his second wife survived him. In an action of multiple-poinding brought by Mr Elder's trustees (in which Mrs Reid and Mrs Lockhart lodged claims to equal shares of the mixed estate) the First Division of the Court, on 16th March 1894 (reported 21 E. 704), ranked and preferred the testator's widow, as guardian or tutor to her son Thomas to the whole heritable property of the deceased, on the ground that the trust-disposition and settlement had been impliedly revoked under the conditio si testator sine liberis decesserit, and remitted to the Lord Ordinary to proceed.

Prior to the date of the trust-settlement the testator had executed three others.

In the first, which was dated 10th November 1858, he directed his trustees to hold the residue of his estate for the use and behoof of any child or children he might have equally among them.

In the other two deeds, which were dated respectively 23d November 1872 and 24th October 1884, there was no provision for children nascituri. It was stated that these two deeds were non-extant, but that the deed of 1872 had contained a clause expressly revoking the deed of 1858.

On 12th May 1894 the Lord Ordinary (Low) pronounced an interlocutor, by which he, inter alia, appointed all the claimants to revise their condescendences and claims within eight days.

An amended claim and a new claim were respectively lodged by Mrs Reid and Mrs Lockhart, and by Messrs Neville and Urie, the trustees under the deed of 10th November 1858. These claimants maintained that the estate, including the heritage, fell to be administered under the deed of 1858, their contention in effect being that as the Court had held that the deed of 1886, which contained no provision for children nascituri had been impliedly revoked under the conditio si testator sine liberis, the deeds of 1872 and 1884, which also contained no provision for children nascituri, must likewise be held to have been revoked by the conditio, and that therefore the deed of 1858, which did provide for children born subsequent to its date, had been revived.

Mrs Elder, as guardian or tutor to her pupil son Thomas, lodged a condescendence and claim, in which she maintained " that the claims now made by the said other claimants, in so far as these claims conflict with the said final judgment of the Court of Session, are foreclosed thereby, and that it is therefore incompetent for the Court to give effect to these claims in so far as they conflict with the said final judgment."

Mrs Elder also lodged a claim as guardian for her pupil daughter

vol. xxii.] COURT OF SESSION, &c. 507

No. 103.

Mar. 16, 1895.

Elder's Trustees v. Elder.

Margaret,* in which she maintained that the former judgment being res judicata of the present question, the moveable estate fell to be divided according to the rules of intestate succession, and alternatively claimed to be ranked and preferred to an equal share of the fund in medio.

On 2d November 1894 the Lord Ordinary pronounced this interlocutor: -

" Finds that the effect of the implied revocation of the trust-disposition and settlement of the deceased Thomas Elder, dated 24th March 1886, which was operated by the subsequent birth of a son, was not to revive the trust-disposition and settlement executed by him on 10th November 1858, and that the means and estate of the said Thomas Elder fall to his heirs ah intestato: With that finding appoints the cause to be enrolled for further procedure."†

The claimants, Mrs Reid and Mrs Lockhart, reclaimed.

* This claim was subsequently withdrawn, and a new claim lodged by a tutor ad litem appointed by the Court-See p. 508.

† " Opinion.-On the question of the competency of the claims which have now been made I do not desire to give any opinion, because it seems to me to be a question of some novelty and not unattended with difficulty.

" But in regard to the merits of the claims which are now before me, I have come to an opinion, and I do not think there is any good purpose to be served by taking the case to avizandum instead of expressing it at once.

" The argument is that the birth of a child subsequent to the execution of the last will made by his father, having by implication revoked that will, the result is to bring into operation a will made many years before, which had been expressly revoked, but which if it had been existing at the date of the father's death would have been admittedly not open to challenge on the ground that it was revoked by the birth of a child. I cannot assent to that proposition. It seems to me that the law in regard to the revocation of a settlement by the subsequent birth of a child is this, that if a child is born subsequent to the date of the will the presumption of law is-unless circumstances shew the contrary to be the case-that that will no longer expresses the final testamentary intention of the father as to the disposal of his property. Now, if that be the case, I am unable to see upon what ground it can be said that you must then hold as the final expression of the father's intention as to the disposal of his property a will made many years before, which he himself had by writing under his hand declared to be no longer the expression of his will. I am unable to see any ground on which that result can be arrived at.

" Further, I think the statement of the law as to express revocation, and the difference between express revocation and implied revocation given by Lord Eldon in Cravfurd, &c. v. Coutts, March 14, 1806, 5 Paton's Appeals, p. 94, and by the late Lord President in the case of Leith v. Leith, June 19, 1863, 1 Macph. 955, are applicable to this case. The late Lord President lays down the law with great distinctness. He says,--' Where a revocation of a previous settlement is merely implied in a new conveyance it is impossible to set aside the conveyance without sweeping away also the effect of the implication ; and where revocation is made conditional by express words, on the new conveyance receiving effect, there also it is impossible to defeat the new conveyance without setting aside the conditional revocation. But,' he goes on to say, ' in the present deed there is a substantive and independent revocation expressed in words and not conditional but absolute, and that being so the heir at law is not only entitled to exclude the revocation from his reduction of the conveyance, but I am disposed to think that he could not have set aside the revocation ex capite lecti, even if he had been inclined to attempt it.'

" Now, all that the presumption arising from the subsequent birth of a child does, in my opinion, is to revoke the operative part of the settlement as to the disposal of the property ; and I do not see how it could, either upon principle or authority, do away with the express revocation which the testator has made of his former wills."

508 CASES DECIDED IN THE [fourth series.

No. 103.

Mar. 16, 1895.

Elder's Trustees v. Elder.

Argued for the trustees under the trust-disposition of 1858;-(1) So long as the fund in medio was in manibus curiœ any party was entitled - to come in and claim, especially if he had not been called in the process. The trustees were in this position, the process having been conducted in their absence. The claim for the reclaimers was equally competent, for they were claiming the fund upon a totally new ground.1 (2) It had been decided that the will of 1886, which made no provision for children nascituri, had been revoked by the operation of the conditio si testator sine liberis. The conditio operated total destruction of that deed, and consequently the clause revoking the prior deed was swept away. It was just as though the testator had on the birth of his son expressly revoked the 1886 will, the result being that any prior will which might be in existence became his last will. The wills of 1872 and 1882 were swept away. They, like the will of 1886, did not provide for children born subsequent to their dates, and the conditio consequently applied to them. The result was that the deed of 1858, which did provide for children nascituri, became the last will of the testator.2

The reclaimers adopted the argument submitted by the trustees under the deed of 1858.

Argued for Mrs Elder;-(1) It was true that the fund in media was in manibus curiœ in the sense that it had not been paid away, but a judgment giving effect to the claims of the reclaimers and the trustees must necessarily be inconsistent with the judgment of the Inner-House of 16th March 1894. These claims were incompetent.3 Dymond's case was quite different. In it new facts and circumstances arose raising a separate ground of action after the date of the judgment, and the cause had never left the Inner-House. Here the case was remitted to the Lord Ordinary in order that he should give effect to the judgment of the Inner-House. It was res judicata not only against the reclaimers but against the trustees, who merely appeared in the interests of the reclaimers, (2) The deed of 1886 was struck at by the conditio only in so far as it was an instrument disposing of property. The clause of revocation was left untouched, and the previous wills were therefore to be held pro non scriptis. There was no ground for presuming that the testator intended to revert, to an old will executed more than thirty years before his death, and revoked by a subsequent will which was in its turn revoked.4

After the cause was taken to avizandum the Court, before pronouncing judgment, in respect that Mrs Elder, as guardian for her son, had an adverse interest to her pupil daughter who had no independent guardian, appointed Mr Aitken, advocate, curator ad litem to the latter. Subsequently Mr Aitken, on behalf of Ms ward, craved leave to withdraw the claim originally lodged for his ward by her mother, and he then lodged a new condescendence and claim, in which he claimed for his ward an

1 Dymond v. Scott, &c., Nov. 23, 1877, 5 B. 196.

8 Erskine's Inst. iii. 8, 46 ; Colquhoun v. Campbell, June 5, 1829, 5 S. 709, per Lord Glenlee, p. 711, 1 Scot. Jur. 248 ; Dobie's Trustees v. Pritchard, Oct. 19, 1887, 15 E. 2 ; Munro'a Executors v. Munro, Nov. 18, 1890, 18 E. 122 ; M'Laren on Wills and Succession, vol. i. p. 401 ; Howden v. Crichton, July 8, 1815, F. C. ; Ker v. Erskine, Jan. 16, 1851, 13 D. 492, 23 Scot. Jur. 205 ; Doves v. Smith, May 31, 1827, 5 S. 684; spalding v. Spalding's Trustees, Dec. 18, 1874, 2 E. 237 ; A's Executors v. B and Others, Jan. 22, 1874, 11 S. L. E. 259 ; Hughes v. Edwardes, July 25, 1892, 19 E. (H. of L.) 33.

3 Morgan v. Morris, March 11, 1856, 18 D. 797, 28 Scot. Jur. 263.

* Kirkpatrick's Trustees v. Kirkpatrick, June 23, 1874, 1 E. (H. of L.) 37 ; Leith v. Leith, June 19, 1863, 1 Macph. 949, 35 Scot. Jur. 562; Craufurd v. Coutts, March 14, 1806, 5 Paton's App. 73, per Lord Eldon, 94,

vol. xxii.] COURT OF SESSION, &c. 509

No. 103.

Mar. 16, 1895.

Elder's Trustees v. Elder.

equal share of the heritable and moveable estate under the deed of 1858. He adopted the arguments which had been stated for Mrs Reid, Mrs Lockhart, and the trustees, under the deed 1858 ; and further pleaded, that in respect Ms ward was not competently represented in the former stages of the case, the judgment of the Inner-House of 16th March 1894 was not res judicata, so far as she herself was concerned.

At advising,-

Lord Adam .-When this case was last before us we pronounced an interlocutor ranking and preferring Mrs Elder as guardian to her son Thomas Elder to the whole heritable property of the deceased.

Since that interlocutor was pronounced the state of matters has changed-a new claim has been lodged for the minor daughter, an amended claim has been made for Mrs Reid and Mrs Lockhart, and a new claim has been lodged for the trustees under the prior settlement by the deceased dated in 1858.

What took place before the Lord Ordinary is contained in the interlocutor now submitted to review, and it appears that the new claims and amended claims lodged by the parties were entirely inconsistent with our previous interlocutor of 16th March. It was pleaded before the Lord Ordinary, and the plea was renewed before us, that these claims were therefore incompetent, and could not stand along with our previous decision. The Lord Ordinary having a clear opinion on the merits of the case did not express, as he says, any opinion on the competency of those claims. The plea, however, was renewed and pressed before us, and we shall have to dispose of it. My opinion is that the interlocutor of 16th March is res judicata against all the parties to the proceedings in which that judgment was pronounced, and therefore it is res judicata in my view as regards the claim of Mrs Reid and Mrs Lockhart. I think it is also res judicata as regards the new claim for Messrs Neville and Urie as trustees under the will of 10th November 1858, and for this reason, that the trustees having no interest of their own but merely as representing the beneficiaries under that will, and Mrs Reid and Mrs Lockhart being the claimants under that will, and the question having already been decided against them, the trustees cannot insist upon their claim.

Now, in the course of the proceedings which took place before us, we observed that Mrs Margaret Blair or Elder, who is guardian or tutor to her pupil son Thomas, and who in that character was the successful claimant, was also sole tutor to her pupil daughter Margaret Ewing. It was obvious that her interest as tutor to her son was entirely adverse to that of her interest as tutor to her daughter. The claims were entirely inconsistent with each other-in fact they were the very opposite. That being so it appeared to us that the pupil daughter had never been properly represented in this case, and therefore we appointed a tutor ad litem to her, with the result that Mr Aitken, whom we appointed tutor, thought right to lodge a new and distinctive claim for the pupil ; and as he is not affected by the plea of res judicata, it appears to me that we must now consider that claim, and dispose of the case on the merits.

We have already decided in this case that a trust-disposition and settlement, executed by the late Mr Elder on 24th March 1886, was impliedly revoked by the subsequent birth of a son in December 1890.

The question which we have now to decide is, whether the effect of that implied revocation is to bring into operation a trust-disposition and settlement previously executed by him on 10th November 1858,-that is, thirty-two years before.

510 CASES DECIDED IN THE [fourth series.

No. 103.

Mar. 16, 1895.

Elder's Trustees v. Elder.

The ground on which it was decided that the trust-disposition and settlement of 1886 could not receive effect was that the subsequent birth of a child raised a presimiptio juris that the deed did not, in the altered circumstances of the family, express the testamentary intentions of the toaster, and that there were no facts averred in the ease sufficient to overcome that presumption. But I do not think that the presumption goes any further than that; in particular, I do not think that there is any presumption that any deed or deeds which may have been previously executed by the truster, and may happen to have been left undestroyed, do express the testamentary intentions of the truster, and so should receive effect. It is to be remembered that we have to consider a question of presumed intention on the part of the truster, and not the legal effect of any act or deed done by him. It may be that if the last deed executed by the truster-that of 1886-had contained a provision in favour of children nascituri, it would not have been impliedly revoked, but that would have been because the truster was presumably satisfied that the deed, in the then existing state of the family, contained a sufficient provision for the new-born child. But it is quite a different thing to say that a deed containing, inter alia, such a provision executed by the truster in 1858, and which no doubt expressed his testamentary intentions at that date, is to be presumed to express his testamentary intentions at the date of Ms death thirty years afterwards. In this particular case we know that it did not do so in 1872, because it was expressly revoked by a deed executed in that year. For my part I cannot see that there is any presumption that the deed of 1858 or 1872, or any other deed executed before the deed of 1886, expresses the testamentary intentions of the truster at his death in 1891, and so should receive effect.

I think the case of an implied revocation is quite different from that of an express revocation. In the case of an express revocation the testator is dealing with, and regulating the succession. If he expressly revokes a subsequent will, any prior will that may be in existence necessarily becomes his last will and testament. That is the legal effect of his own act, and there is no room for any question of presumed intention in the matter.

In this case, accordingly, if the truster had, on the birth of his son, expressly revoked the deed of 1886, that would have brought into operation the deed of 1884, and, if he had also revoked that deed and the deed of 1872, that would have brought into operation the deed of 1858. But in that case there would have been no question of presumed intention at all. I think the question in this case is, what is the effect of the revocation implied from the birth of the child 1 Is the presumption simply that the deed is revoked as not expressing the last will of the testator in the new circumstances which have emerged, leaving his succession to be settled by law, as presumably his intention, failing Ms making a new settlement; or is the presumption not only that the deed does not express the will of the testator in the changed circumstances of the ease, but also that, if there be in existence a previously executed will which does contain, among other provisions, a provision in favour of children nascituri, that will is to be presumed to express the testamentary intentions of the testator, and so is to receive effect in the absence of a new will ? In my opinion the former is the true presumption and not the latter, and therefore I agree with the Lord Ordinary.

I think therefore the Lord Ordinary's interlocutor should be affirmed.

vol. xxii.] COURT OF SESSION, &c. 511

No. 103.

Mar. 16, 1895.

Elder's Trus-tees v. Elder.

Lord M'Laren.--This action seems to have raised two new points, and one of these is now for consideration. There is a very well known and considerable series of decisions which establishes the principle that if a testator at the time he has no children makes a testamentary settlement of his estate the subsequent birth of a child renders that testamentary act of no effect. This has sometimes been treated in the judicial opinions that have been given in the cases as a condition which is supposed to have been implied in the will, and sometimes, I think, especially in the more recent eases, it has been treated as a rule of equity by which a will made under circumstances that are very different from the real circumstances at the death ought not to be treated as the testator's last will. But whether we adopt one or other of these principles, or take the Roman view of the case, that the will is inefficacious because it disinherits the issue of the testator, the result is the same, that the will so far as operating a transfer or gift of the testamentary estate to persons other than the issue is set aside. On the other hand, I think it is perfectly clear that, where a childless testator makes in his last will provision for any issue that may be born to him, that is a good will; and it is outside the province of the Court to enter into any question as to whether the testator has made the most judicious distribution of his heritable and moveable estate among the different members of his then unborn family.

But in the first branch of this ease the question arose, so far as my reeollec-tion serves me, for the first time, whether that principle should apply to the case of a will made providing only for the existing members of the testator's family in the case of a child being subsequently born to him, and your Lordships held that the principle was applicable, and as the child born after the execution of the will was a son, the others being daughters, you adjudged the heritable estate to the son and the residue to the children equally according to the rules of intestate succession.

Now, on behalf of the infant daughter, who was not duly represented, and also on behalf of other legatees, although probably they would not be entitled to claim a reconsideration of the judgment, the question is raised whether the estate is not really distributable under a previous will in which the testator contemplates the case of his having other children and provides for that. The question then is, whether the rule to which I have referred is a rule which revokes only the gifts in the will made before the birth of children, or whether it revokes every part of the will, including any clause of revocation of previous testamentary instruments. Now, on that question, which I think is a new question in our practice, it may be observed, first, that up to this time there is no authority for extending the rule so that it should prevent a clause of revocation taking effect. Lord Adam has put the case of a testator who has by a will made provision for children who may be born to him-or it might be that he has made a will in favour of collateral relatives-and in view of marriage executes a testamentary deed which simply revokes all previous wills without making any new testamentary disposition, and I am unable to see any reason why such an instrument should not receive full effect according to its tenor. So far from it being a deed which would be affected by the principle of this equitable rule, it is rather a deed which is intended to prepare the way for a subsequent testamentary Act in which provision would be made for the children. The revocation in no way prejudices the rights of children as heirs or next of kin on the testator's death ; its effect is to let in those rights pro-

512 CASES DECIDED IF THE [fourth series.

No. 103.

Mar. 16, 1895.

Elder's Trustees v. Elder.

vided no subsequent inconsistent disposition of the estate be thereafter made. I therefore cannot doubt that if we were here considering the ease of a mere deed of revocation we should hold that such a deed was practically valid, and was in no way out down by the subsequent birth of children. That being so, it is difficult to see why the complication of a revocation with a new disposition should have any effect in impairing its efficacy. Accordingly, agreeing with the opinion which has been delivered, I think that the equitable rule in question must be confined to testamentary gifts, and that a clause of revocation must receive effect according to its tenor.

The result of that is that in the present case where there is a revocation in the testator's last will-a revocation of all previous wills and testamentary gifts -the old will of 1858 stands revoked. Even in the absence of any express revocation I must say I should see very great difficulty in applying the principle of an implied revocation in such a way as to set up a deed thirty years old, which certainly could not be held to be a deed more applicable to the testator's circumstances when he died than any of those which succeeded it; and, although it is perhaps going beyond the actual necessities of the case to dispose of the question, if it were necessary, I should be disposed to hold that wherever a last will is cut down by the operation of the rule or presumption that we are now considering, all previous testamentary settlements must fall along with it except such as are obligatory and matter of contract.

I therefore concur in the judgment which has been proposed by Lord Adam.

Lord Kinnear .--I agree, and have only to add that the question seems to me to have been already decided, if not by the judgment we have already pronounced, at all events by the reasoning on which the judgment was founded, as that was explained by Lord Adam in his opinion in which the rest of the Court concurred. Two different views have been taken in different systems of jurisprudence of the principle on which a will may be displaced by the subsequent birth of children. One is that it is a condition implied by law that in case of the subsequent birth of a child the will shall become void. In that view the will is ineffectual in consequence of an absolute rule of law irrespective of any change of intention on the part of the testator which may be inferred from a change of circumstances. The other view is that it is a question of intention to be presumed from a change of circumstances; because if the birth of a child in the circumstances of the particular case alters the testator's condition so as to give rise to new interests and new moral obligations which he had not in view when he made his will, the law will presume a change of intention corresponding to the change of circumstances. Now, we have held on the former occasion that the rule of the law of Scotland was in accordance with this last view. But if that be sound it appears to me that the question must be, as it is put by Sir John Nicoll, " a question of presumed intention whether to die intestate or, notwithstanding the change of circumstances, to leave the will existing and effectual."

There may be reasonable ground for presuming that the testator did not intend his only son to be excluded from all share of his succession by the operation of the will executed when he had no reason to anticipate that a son would be born to him, and which therefore took no account of the new affection' and new duties which such a birth would bring into existence. At all events there is authority for that presumption. But there is no ground in reason and

vol. xxii.] COURT OF SESSION, &c. 513

No. 103.

Mar. 16, 1895.

Elder's Trustees v. Elder.

no authority has been cited for presuming that he intended to revert to an old will executed more than thirty years before his death, and revoked by a sub-. sequent will which was in its turn revoked. It is not a sufficient reason that] the first will contains a provision for children, for that provision cannot be revived without at the same time reviving all the other dispositions of the will, contrary to the intention of the testator. The testator has expressed his intention to revoke the first will. The law presumes, in the circumstances that have occurred, that he did not intend to disinherit his son. The conclusion seems to be that his estate must be distributed as intestate succession.

The Lord Pbesident concurred.

The Court adhered.

Webster, "Will, & Ritchie, S.8.C.-Simpson & Marwick, "W.S-J. & J. Galletly, S.S.C. -Dalgleish, Gray, & Dobbie, W.S.-Agent*.

22 R 505

The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.